The clarion., 1887-04-13
JNo. p. MCFARLAND,
V.
NANCY s. MCFARLAND.

| NANCY >. MCFARLAND. J
Appeal from the Chancery Court oi
Lincoln county. Hon. A. L. koane
Judge.
R. III. Thompson, for the appellant.
II. Cassidy, for the appellee.
The case is stated in the opinion.
COOPER, C. j., delivered tbe opinion Of
the Court.
The appellee exhibited her bill in the
chancery court of Lincoln county
| against the appellant for alimony. The
bill charges the marriage of the parties
and that subsequently the husband
drove the wife from home and has re-
fused to make provision for her support
or to permit her to return to his domicile.
The answer admits the marriage, charges
the complainant to be of ungovernaole
temper, whereby the home of the defen-
dant was made unhappy and his chill
dren forced to leave his home. 1t denies
that the defendant compelled the con-
plainant to leave his home, but says
that she went of her own accord, and
expresses the hope that she may not
desire to return. On the coming in of
the answer the complainant moved for
alimony pendente lite ard for suit money
On the hearing of this motion, over the
objections of the defendant the chan
cellor heard oral testimony to show that
the wife had no separate property, and
what sum would suffice to support her
during the litigation and also of what
would be reasonable fee for her attor-
ney, and allowed alimeuy of IS. 90 per
month and the sum of fifty dollars for
attorneys fees. From this decree the
husband appeals and assigns for error
the action of the court in hearing the
motion on oral proof, and also contends
that in view of the denial of the husband
that he put away his wife no allowance
for alimony could be made until after
trial of the issue thus made.
Neither assignment CT error is well
taken. The decree is not upon the
merits of the controversy it is one made
In an lnterlocutory matter addressed
largely to the discretion of the chancel-
lor, and to require formal proof by depo-
sition would unreasonably delay the
hearing of the application. 2 Daniels
Chy. S88; 3 Greenleaf on Evidence, sec
tion 331
1t is the settled law of this State that
wife may exhibit her bill for alimony
alone against the husband without pray
ing for a divorce. Garland v. Gar
land, so Miss, 694; Werner V. Werner,
so Miss, 260. And this being the case we
see no reason why alimony pendente lite
may not as well be granted under the
same circumstances and upon the same
principles as would be done If the
.afx raH e. otx,
In suits for divorce where an applica-
tion is made for temporary alimony the
court will not investigate the merits of
the bill "or enquire into the truth of the
facts therein alleged" Porter v. Porter,
Al Miss, 116.
tits said that alimony pendente lite is
allowed from the single fact of a pend
ing suit for divorce because the exhibi-
ton of the bill makes it improper for
the parties to cohabit. Bishop on Mar
riage and Divorce, sec. 384.
And therefore when for any other
purpose bill is exhibited against the
husband and the circumstances are such
that cohabitation would be improper
pending the suit, temporary alimony
should be given. Head v. Head. 8 Atk..
295; Bishop on NJ. & Div, 3S5.
Whether in view of The manifest un-
friendliness exhibited by the husband
TO the wife by his answer, an offer by
him to provide for her at his domiciie
pending this suit, would justify the
court in refusing alimony it is unneces-
sary to decide; he has not done so. and
the temper of his answer shows that the
wife would not be voluntarily received
by him if she offered to return. II is |
his duty to provide for her, and for the
purposes of this hearing (the marriage
being adr1itted) the allegations of the |
bill must be accepted as true.
The reason why preliminary proof of |
the marriage must be made in cases in |
which it is denied by the answer is that |
marriage is the very foundation of the |
husbands obligation to furnish a sup
port. Bishop on NJ. & Div, 3s6. Decree
affirmed.